436 U.S.

307
98 S.Ct. 1816
56 L.Ed.2d 305

Ray MARSHALL, Secretary of Labor, et al., Appellants,

v.
BARLOW'S, INC.
No. 76-1143.
Argued Jan. 9, 1978.
Decided May 23, 1978.

Syllabus
Appellee brought this action to obtain injunctive relief against a
warrantless inspection of its business premises pursuant to 8(a) of the
Occupational Safety and Health Act of 1970 (OSHA), which empowers
agents of the Secretary of Labor to search the work area of any
employment facility within OSHA's jurisdiction for safety hazards and
violations of OSHA regulations. A three-judge District Court ruled in
appellee's favor, concluding, in reliance on Camara v. Municipal Court,
387 U.S. 523, 528-529, 87 S.Ct.1727, 1730, 1731, 18 L.Ed.2d 930, and
See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d
943, that the Fourth Amendment required a warrant for the type of search
involved and that the statutory authorization for warrantless inspections
was unconstitutional. Held : The inspection without a warrant or its
equivalent pursuant to 8(a) of OSHA violated the Fourth Amendment.
Pp. 311-325.
(a) The rule that warrantless searches are generally unreasonable applies
to commercial premises as well as homes. Camara v. Municipal Court,
supra, and See v. City of Seattle, supra. Pp. 311-313.
(b) Though an exception to the search warrant requirement has been
recognized for "closely regulated" industries "long subject to close
supervision and inspection," Colonnade Catering Corp. v. United States,
397 U.S. 72, 74, 77, 90 S.Ct. 774, 775, 777, 25 L.Ed.2d 60, that exception
does not apply simply because the business is in interstate commerce. Pp.
313-314.

(c) Nor does the fact that an employer by the necessary utilization of
employees in his operation mean that he has opened areas where the
employees alone are permitted to the warrantless scrutiny of Government
agents. Pp. 314-315.
(d) Insofar as experience to date indicates, requiring warrants to make
OSHA inspections will impose no serious burdens on the inspections
system or the courts. The advantages of surprise through the opportunity
of inspecting without prior notice will not be lost if, after entry to an
inspector is refused, an ex parte warrant can be obtained, facilitating an
inspector's reappearance at the premises without further notice; and
appellant Secretary's entitlement to a warrant will not depend on his
demonstrating probable cause to believe that conditions on the
premisesviolate OSHA but merely that reasonable legislative or
administrative standards for conducting an inspection are satisfied with
respect to a particular establishment. Pp. 315-321.
(e) Requiring a warrant for OSHA inspections does not mean that, as a
practical matter, warrantless-search provisions in other regulatory statutes
are unconstitutional, as the reasonableness of those provisions depends
upon the specific enforcement needs and privacy guarantees of each
statute. Pp. 321-322.
424 F.Supp. 437, affirmed.
Solicitor General Wade H. McCree, Jr., Washington, D. C., for
appellants.
John L. Runft, Boise, Idaho, for appellee.
Mr. Justice WHITE delivered the opinion of the Court.

Section 8(a) of the Occupational Safety and Health Act of 1970 (OSHA or
Act)1 empowers agents of the Secretary of Labor (Secretary) to search the work
area of any employment facility within the Act's jurisdiction. The purpose of
the search is to inspect for safety hazards and violations of OSHA regulations.
No search warrant or other process is expressly required under the Act.

On the morning of September 11, 1975, an OSHA inspector entered the

customer service area of Barlow's, Inc., an electrical and plumbing installation
business located in Pocatello, Idaho. The president and general manager, Ferrol
G. "Bill" Barlow, was on hand; and the OSHA inspector, after showing his

credentials,2 informed Mr. Barlow that he wished to conduct a search of the

working areas of the business. Mr. Barlow inquired whether any complaint had
been received about his company. The inspector answered no, but that Barlow's
Inc., had simply turned up in the agency's selection process. The inspector
again asked to enter the nonpublic area of the business; Mr. Barlow's response
was to inquire whether the inspector had a search warrant. The inspector had
none. Thereupon, Mr. Barlow refused the inspector admission to the employee
area of his business. He said he was relying on his rights as guaranteed by the
Fourth Amendment of the United States Constitution.
3

Three months later, the Secretary petitioned the United States District Court for
the District of Idaho to issue an order compelling Mr. Barlow to admit the
inspector.3 The requested order was issued on December 30, 1975, and was
presented to Mr. Barlow on January 5, 1976. Mr. Barlow again refused
admission, and he sought his own injunctive relief against the warrantless
searches assertedly permitted by OSHA. A three-judge court was convened. On
December 30, 1976, it ruled in Mr. Barlow's favor. 424 F.Supp. 437.
Concluding that Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S.Ct.
1727, 1730, 1731, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S.
541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967), controlled this case, the
court held that the Fourth Amendment required a warrant for the type of search
invo ved here4 and that the statutory authorization for warrantless inspections
was unconstitutional. An injunction against searches or inspections pursuant to
8(a) was entered. The Secretary appealed, challenging the judgment, and we
noted probable jurisdiction. 430 U.S. 964, 98 S.Ct. 474, 54 L.Ed.2d 309.

* The Secretary urges that warrantless inspections to enforce OSHA are

reasonable within the meaning of the Fourth Amendment. Among other things,
he relies on 8(a) of the Act, 29 U.S.C. 657(a), which authorizes inspection
of business premises without a warrant and which the Secretary urges
represents a congressional construction of the Fourth Amendment that the
courts should not reject. Regretably, we are unable to agree.

The Warrant Clause of the Fourth Amendment protects commercial buildings

as well as private homes. To hold otherwise would belie the origin of that
Amendment, and the American colonial experience. An important forerunner
of the first 10 Amendments to the United States Constitution, the Virginia Bill
of Rights, specifically opposed "general warrants, whereby an officer or
messenger may be commanded to search suspected places without evidence of
a fact committed."5 The general warrant was a recurring point of contention in
the Colonies immediately preceding the Revolution.6 The particular
offensiveness it engendered was acutely felt by the merchants and businessmen

whose premises and products were inspected for compliance with the several
parliamentary revenue measures that most irritated the colonists.7 "[T]he
Fourth Amendment's commands grew in large measure out of the colonists'
experience with the writs of assistance . . . [that] granted sweeping power to
customs officials and other agents of the King to search at large for smuggled
goods." United States v. Chadwick, 433 U.S. 1, 7-8, 97 S.Ct. 2476, 2481, 53
L.Ed.2d 538 (1977). See also G. M. Leasing Corp. v. United States, 429 U.S.
338, 355, 97 S.Ct. 619, 630, 50 L.Ed.2d 530 (1977). Against this background,
it is untenable that the ban on warrantless searches was not intended to shield
places of business as well as of residence.
6

This Court has already held that warrantless searches are generally
unreasonable, and that this rule applies to commercial premises as well as
homes. In Camara v. Municipal Court, supra, 387 U.S., at 528-529, 87 S.Ct., at
1731, we held:

"[E]xcept in certain carefully defined classes of cases, a search of private

property without proper consent is 'unreasonable' unless it has been authorized
by a valid search warrant."
On the same day, we also ruled:

"As we explained in Camara, a search of private houses is presumptively

unreasonable if conducted without a warrant. The businessman, like the
occupant of a residence, has a constitutional right to go about his business free
from unreasonable official entries upon his private commercial property. The
businessman, too, has that right placed in jeopardy if the decision to enter and
inspect for violation of regulatory laws can be made and enforced by the
inspector in he field without official authority evidenced by a warrant." See v.
City of Seattle, supra, 387 U.S., at 543, 87 S.Ct., at 1739.

These same cases also held that the Fourth Amendment prohibition against
unreasonable searches protects against warrantless intrusions during civil as
well as criminal investigations. Ibid. The reason is found in the "basic purpose
of this Amendment . . . [which] is to safeguard the privacy and security of
individuals against arbitrary invasions by governmental officials." Camara,
supra, 387 U.S., at 528, 87 S.Ct. at 1730. If the government intrudes on a
person's property, the privacy interest suffers whether the government's
motivation is to investigate violations of criminal laws or breaches of other
statutory or regulatory standards. It therefore appears that unless some
recognized exception to the warrant requirement applies, See v. City of Seattle,

would require a warrant to conduct the inspection sought in this case.

10

The Secretary urges that an exception from the search warrant requirement has
been recognized for "pervasively regulated business[es]," United States v.
Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (1972), and for
"closely regulated" industries "long subject to close supervision and
inspection." Colonnade Catering Corp. v. United States, 397 U.S. 72, 74, 77,
90 S.Ct. 774, 777, 25 L.Ed.2d 60 (1970). These cases are indeed exceptions,
but they represent responses to relatively unique circumstances. Certain
industries have such a history of government oversight that no reasonable
expectation of privacy, see Katz v. United States, 389 U.S. 347, 351-352, 88
S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), could exist for a proprietor over the
stock of such an enterprise. Liquor (Colonnade ) and firearms (Biswell ) are
industries of this type; when an entrepreneur embarks upon such a business, he
has voluntarily chosen to subject himself to a full arsenal of governmental
regulation.

11

Industries such as these fall within the "certain carefully defined classes of
cases," referenced in Camara, 387 U.S., at 528, 87 S.Ct., at 1731. The element
that distinguishes these enterprises from ordinary businesses is a long tradition
of close government supervision, of which any person who chooses to enter
such a business must already be aware. "A central difference between those
cases [Colonnade and Biswell ] and this one is that businessmen engaged in
such federally licensed and regulated enterprises accept the burdens as well as
the benefits of their trade, whereas the petitioner here was not engaged in any
regulated or licensed business. The businessman in a regulated industry in effect
consents to the restrictions placed upon him." Almeida-Sanchez v. United
States, 413 U.S. 266, 271, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973).

12

The clear import of our cases is that the closely regulated industry of the type
involved in Colonnade and Biswell is the exception. The Secretary would make
it the rule. Invoking the Walsh-Healey Act of 1936, 41 U.S.C. 35 et seq., the
Secretary attempts to support a conclusion that all businesses involved in
interstate commerce have long been subjected to close supervision of employee
safety and health conditions. But the degree of federal involvement in employee
working circumstances has never been of the order of specificity and
pervasiveness that OSHA mandates. It is quite unconvincing to argue that the
imposition of minimum wages and maximum hours on employers who
contracted with the Government under the Walsh-Healey Act prepared the
entirety of American interstate commerce for regulation of working conditions
to the minutest detail. Nor can any but the most fictional sense of voluntary
consent to later searches be found in the single fact that one conducts a business

affecting interstate commerce; under current practice and law, few businesses
can be conducted without having some effect on interstate commerce.
13

The Secretary also attempts to derive support for a Colonnade-Biswell -type

exception by drawing analogies from the field of labor law. In Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), this
Court upheld the rights of employees to solicit for a union during nonworking
time where efficiency was not compromised. By opening up his property to
employees, the employer had yielded so much of his private property rights as
to allow those employees to exercise 7 rights under the National Labor
Relations Act. But this Court also held that the private property rights of an
owner prevailed over the intrusion of nonemployee organizers, even in
nonworking areas of the plant and during nonworking hours. NLRB v. Babcock
& Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956).

14

The critical fact in this case is that entry over Mr. Barlow's objection is being
sought by a Government agent.8 Employees are not being prohibited from
reporting OSHA violations. What they observe in their daily functions is
undoubtedly beyond the employer's reasonable expectation of privacy. The
Government inspector, however, is not an employee. Without a warrant he
stands in no better position than a member of the public. What is observable by
the public is observable, without a warrant, by the Government inspector as
well. 9 The owner of a business has not, by the necessary utilization of
employees in his operation, thrown open the areas where employees alone are
permitted to the warrantless scrutiny of Government agents. That an employee
is free to report, and the Government is free to use, any evidence of
noncompliance with OSHA that the employee observes furnishes no
justification for federal agents to enter a place of business from which the
public is restricted and to conduct their own warrantless search.10

II
15

The Secretary nevertheless stoutly argues that the enforcement scheme of the
Act requires warrantless searches, and that the restrictions on search discretion
contained in the Act and its regulations already protect as much privacy as a
warrant would. The Secretary thereby asserts the actual reasonableness of
OSHA searches, whatever the general rule against warrantless searches might
be. Because "reasonableness is still the ultimate standard," Camara v.
Municipal Court, 387 U.S., at 539, 87 S.Ct., at 1736, the Secretary suggests that
the Court decide whether a warrant is needed by arriving at a sensible balance
between the administrative necessities of OSHA inspections and the
incremental protection of privacy of business owners a warrant would afford.

He suggests that only a decision exempting OSHA inspections from the

Warrant Clause would give "full recognition to the competing public and
private interests here at stake." Ibid.
16

The Secretary submits that warrantless ins ections are essential to the proper
enforcement of OSHA because they afford the opportunity to inspect without
prior notice and hence to preserve the advantages of surprise. While the
dangerous conditions outlawed by the Act include structural defects that cannot
be quickly hidden or remedied, the Act also regulates a myriad of safety details
that may be amenable to speedy alteration or disguise. The risk is that during
the interval between an inspector's initial request to search a plant and his
procuring a warrant following the owner's refusal of permission, violations of
this latter type could be corrected and thus escape the inspector's notice. To the
suggestion that warrants may be issued ex parte and executed without delay
and without prior notice, thereby preserving the element of surprise, the
Secretary expresses concern for the administrative strain that would be
experienced by the inspection system, and by the courts, should ex parte
warrants issued in advance become standard practice.

17

We are unconvinced, however, that requiring warrants to inspect will impose

serious burdens on the inspection system or the courts, will prevent inspections
necessary to enforce the statute, or will make them less effective. In the first
place, the great majority of businessmen can be expected in normal course to
consent to inspection without warrant; the Secretary has not brought to this
Court's attention any widespread pattern of refusal.11 In those cases where an
owner does insist on a warrant, the Secretary argues that inspection efficiency
will be impeded by the advance notice and delay. The Act's penalty provisions
for giving advance notice of a search, 29 U.S.C. 666(f), and the Secretary's
own regulations, 29 CFR 1903.6 (1977), indicate that surprise searches are
indeed contemplated. However, the Secretary has also promulgated a regulation
providing that upon refusal to permit an inspector to enter the property or to
complete his inspection, the inspector shall attempt to ascertain the reasons for
the refusal and report to his superior, who shall "promptly take appropriate
action, including compulsory process, if necessary." 29 CFR 1903.4 (1977).12
The regulation represents a choice to proceed by process where entry is
refused; and on the basis of evidence available from present practice, the Act's
effectiveness has not been crippled by providing those owners who wish to
refuse an initial requested entry with a time lapse while the inspector obtains
the necessary process.13 Indeed, the kind of process sought in this case and
apparently anticipated by the regulation provides notice to the business
operator.14 If this safeguard endangers the efficient administration of OSHA,
the Secretary should never have adopted it, particularly when the Act does not

require it. Nor is it immediately apparent why the advantages of surprise would
be lost if, after being refused entry, procedures were available for the Secretary
to seek an ex parte warrant and to reappear at the premises without further
notice to the establishment being inspected.15
18

Whether the Secretary proceeds to secure a warrant or other process, with or

without prior notice, his entitlement to inspect will not depend on his
demonstrating probable cause to believe that conditions in violation of OSHA
exist on the premises. Probable cause in the criminal law sense is not required.
For purposes of an administrative search such as this, probable cause justifying
the issuance of a warrant may be based not only on specific evidence of an
existing violation16 but also on a showing that "reasonable legislative or
administrative standards for conducting an . . . inspection are satisfied with
respect to a particular [establishment]." Camara v. Municipal Court, 387 U.S.,
at 538, 87 S.Ct., at 1736. A warrant showing that a specific business has been
chosen for an OSHA search on the basis of a general administrative plan for the
enforcement of the Act derived from neutral sources such as, for example,
dispersion of employees in various types of industries across a given area, and
the desired frequency of searches in any of the lesser divisions of the area,
would protect an employer's Fourth Amendment rights.17 We doubt that the
consumption of enforcement energies in the obtaining of such warrants will
exceed manageable proportions.

19

Finally, the Secretary urges that requiring a warrant for OSHA inspectors will
mean that, as a practical matter, warrantless-search provisions in other
regulatory statutes are also constitutionally infirm. The reasonableness of a
warrantless search, however, will depend upon the specific enforcement needs
and privacy guarantees of each statute. Some of the statutes cited apply only to
a single industry, where regulations might already be so pervasive that a
Colonnade-Biswell exception to the warrant requirement could apply. Some
statutes already envision resort to federal-court enforcement when entry is
refused, employing specific language in some cases18 and general language in
others.19 In short, we base today's opinion on the facts and law concerned with
OSHA and do not retreat from a holding appropriate to that statute because of
its real or imagined effect on other, different administrative schemes.

20

Nor do we agree that the incremental protections afforded the employer's

privacy by a warrant are so marginal that they fail to justify the administrative
burdens that may be entailed. The authority to make warrantless searches
devolves almost unbridled discretion upon executive and administrative
officers, particularly those in the field, as to when to search and whom to
search. A warrant, by contrast, would provide assurances from a neutral officer

that the inspection is reasonable under the Constitution, is authorized by statute,

and is pursuant to an administrative plan containing specific neutral criteria.20
Also, a warrant would then and there advise the owner of the scope and objects
of the search, beyond which limits the inspector is not expected to proceed.21
These are important functions for a warrant to perform, functions which
underlie the Court's prior decisions that the Warrant Clause applies to
inspections for compliance with regulatory statutes.22 Camara v. Municipal
Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. City of
Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). We conclude that
the concerns expressed by the Secretary do not suffice to justify warrantless
inspections under OSHA or vitiate the general constitutional requirement that
for a search to be reasonable a warrant must be obtained.
III
21

We hold that Barlow's was entitled to a declaratory judgment that the Act is
unconstitutional insofar as it purports to authorize inspections without warrant
or its equivalent and to an injunction enjoining the Act's enforcement to that
extent.23 The judgment of the District Court is therefore affirmed.

22

So ordered.

23

Mr. Justice BRENNAN took no part in the consideration or decision of this

case.

24

Mr. Justice STEVENS, with whom Mr. Justice BLACKMUN and Mr. Justice
REHNQUIST join, dissenting.

25

Congress enacted the Occupational Safety and Health Act to safeguard

employees against hazards in the work areas of businesses subject to the Act.
To ensure compliance, Congress authorized the Secretary of Labor to conduct
routine, nonconsensual inspections. Today the Court holds that the Fourth
Amendment prohibits such inspections without a warrant. The Court also holds
that the constitutionally required warrant may be issued without any showing of
probable cause. I disagree with both of these holdings.

26

The Fourth Amendment contains two separate Clauses, each flatly prohibiting a
category of governmental conduct. The first Clause states that the right to be
free from unreasonable searches "shall not be violated";1 the second
unequivocally prohibits the issuance of warrants except "upon probable
cause."2 In this case the ultimate question is whether the category of

warrantless searches authorized by the statute is "unreasonable" within the

meaning of the first Clause.
27

In cases involving the investigation of criminal activity, the Court has held that
the reasonableness of a search generally depends upon whether it was
conducted pursuant to a valid warrant. See, e. g., Coolidge v. New Hampshire,
403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. There is, however, also a
category of searches which are reasonable within the meaning of the first
Clause even though the probable-cause requirement of the Warrant Clause
cannot be satisfied. See United States v. Martinez-Fuerte, 428 U.S. 543, 96
S.Ct. 3074, 49 L.Ed.2d 1116; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889; South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49
L.Ed.2d 1000; United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32
L.Ed.2d 87. The regulatory inspection program challenged in this case, in my
judgment, falls within this category.

28

* The warrant requirement is linked "textually . . . to the probable-cause

concept" in the Warrant Clause. South Dakota v. Opperman, supra, 428 U.S., at
370 n.5, 96 S.Ct. at 3097. The routine OSHA inspections are, by definition, not
based on cause to believe there is a violation on the premises to be inspected.
Hence, if the inspections were measured against the requirements of the
Warrant Clause, they would be automatically and unequivocally unreasonable.

29

Because of the acknowledged importance and reasonableness of routine

inspections in the enforcement of federal regulatory statutes such as OSHA, the
Court recognizes that requiring full compliance with the Warrant Clause would
invalidate all such inspection programs. Yet, rather than simply analyzing such
programs under the "Reasonableness" Clause of the Fourth Amendment, the
Court holds the OSHA program invalid under the Warrant Clause and then
avoids a blanket prohibition on all routine, regulatory inspections by relying on
the notion that the "probable cause" requirement in the Warrant Clause may be
relaxed whenever the Court believes that the governmental need to conduct a
category of "searches" outweighs the intrusion on interests protected by the
Fourth Amendment.

30

The Court's approach disregards the plain language of the Warrant Clause and
is unfaithful to the balance struck by the Framers of the Fourth Amendment
"the one procedural safeguard in the Constitution that grew directly out of the
events which immediately preceded the revolutionary struggle with England."3
This preconstitutional history includes the controversy in England over the
issuance of general warrants to aid enforcement of the seditious libel laws and
the colonial experience with writs of assistance issued to facilitate collection of

the various import duties imposed by Parliament. The Framers' familiarity wi h

the abuses attending the issuance of such general warrants provided the
principal stimulus for the restraints on arbitrary governmental intrusions
embodied in the Fourth Amendment.
31

"[O]ur constitutional fathers were not concerned about warrantless searches,

but about overreaching warrants. It is perhaps too much to say that they feared
the warrant more than the search, but it is plain enough that the warrant was the
prime object of their concern. Far from looking at the warrant as a protection
against unreasonable searches, they saw it as an authority for unreasonable and
oppressive searches . . . ." 4

32

Since the general warrant, not the warrantless search, was the immediate evil at
which the Fourth Amendment was directed, it is not surprising that the Framers
placed precise limits on its issuance. The requirement that a warrant only issue
on a showing of particularized probable cause was the means adopted to
circumscribe the warrant power. While the subsequent course of Fourth
Amendment jurisprudence in this Court emphasizes the dangers posed by
warrantless searches conducted without probable cause, it is the general
reasonableness standard in the first Clause, not the Warrant Clause, that the
Framers adopted to limit this category of searches. It is, of course, true that the
existence of a valid warrant normally satisfies the reasonableness requirement
under the Fourth Amendment. But we should not dilute the requirements of the
Warrant Clause in an effort to force every kind of governmental intrusion
which satisfies the Fourth Amendment definition of a "search" into a judicially
developed, warrant-preference scheme.

33

Fidelity to the original understanding of the Fourth Amendment, therefore,

leads to the conclusion that the Warrant Clause has no application to routine,
regulatory inspections of commercial premises. If such inspections are valid, it
is because they comport with the ultimate reasonableness standard of the
Fourth Amendment. If the Court were correct in its view that such inspections,
if undertaken without a warrant, are unreasonable in the constitutional sense,
the issuance of a "new-fangled warrant" to use Mr. Justice Clark's
characteristically expressive term without any true showing of particularized
probable cause would not be sufficient to validate them.5

II
34

Even if a warrant issued without probable cause were faithful to the Warrant
Clause, I could not accept the Court's holding that the Government's inspection
program is constitutionally unreasonable because it fails to require such a

warrant procedure. In determining whether a warrant is a necessary safeguard

in a given class of cases, "the Court has weighed the public interest against the
Fourth Amendment interest of the individual . . . ." United States v. MartinezFuerte, 428 U.S., at 555, 96 S.Ct., at 3081. Several considerations persuade me
that this balance should be struck in favor of the routine inspections authorized
by Congress.
35

Congress has determined that regulation and supervision of safety in the

workplace furthers an important public interest and that the power to conduct
warrantless searches is necessary to accomplish the safety goals of the
legislation. In assessing the public interest side of the Fourth Amendment
balance, however, the Court today substitutes its judgment for that of Congress
on the question of what inspection authority is needed to effectuate the
purposes of the Act. The Court states that if surprise is truly an important
ingredient of an effective, representative inspection program, it can be retained
by obtaining ex parte warrants in advance. The Court assures the Secretary that
this will not unduly burden enforcement resources b cause most employers will
consent to inspection.

36

The Court's analysis does not persuade me that Congress' determination that the
warrantless-inspection power as a necessary adjunct of the exercise of the
regulatory power is unreasonable. It was surely not unreasonable to conclude
that the rate at which employers deny entry to inspectors would increase if
covered businesses, which may have safety violations on their premises, have a
right to deny warrantless entry to a compliance inspector. The Court is correct
that this problem could be avoided by requiring inspectors to obtain a warrant
prior to every inspection visit. But the adoption of such a practice undercuts the
Court's explanation of why a warrant requirement would not create undue
enforcement problems. For, even if it were true that many employers would not
exercise their right to demand a warrant, it would provide little solace to those
charged with administration of OSHA; faced with an increase in the rate of
refusals and the added costs generated by futile trips to inspection sites where
entry is denied, officials may be compelled to adopt a general practice of
obtaining warrants in advance. While the Court's prediction of the effect a
warrant requirement would have on the behavior of covered employers may
turn out to be accurate, its judgment is essentially empirical. On such an issue, I
would defer to Congress' judgment regarding the importance of a warrantlesssearch power to the OSHA enforcement scheme.

37

The Court also appears uncomfortable with the notion of second-guessing

Congress and the Secretary on the question of how the substantive goals of
OSHA can best be achieved. Thus, the Court offers an alternative explanation

for its refusal to accept the legislative judgment. We are told that, in any event,
the Secretary, who is charged with enforcement of the Act, has indicated that
inspections without delay are not essential to the enforcement scheme. The
Court bases this conclusion on a regulation prescribing the administrative
response when a compliance inspector is denied entry. It provides: "The Area
Director shall immediately consult with the Assistant Regional Director and the
Regional Solicitor, who shall promptly take appropriate action, including
compulsory process, if necessary." 29 CFR 1903.4 (1977). The Court views
this regulation as an admission by the Secretary that no enforcement problem is
generated by permitting employers to deny entry and delaying the inspection
until a warrant has been obtained. I disagree. The regulation was promulgated
against the background of a statutory right to immediate entry, of which
covered employers are presumably aware and which Congress and the
Secretary obviously thought would keep denials of entry to a minimum. In these
circumstances, it was surely not unreasonable for the Secretary to adopt an
orderly procedure for dealing with what he believed would be the occasional
denial of entry. The regulation does not imply a judgment by the Secretary that
delay caused by numerous denials of entry would be administratively
acceptable.
38

Even if a warrant requirement does not "frustrate" the legislative purpose, the
Court has no authority to impose an additional burden on the Secretary unless
that burden is required to protect the employer's Fourth Amendment interests.6
The essential function of the traditional warrant requirement is the interposition
of a neutral magistrate between the citizen and the presumably zealous law
enforcement officer so that there might be an objective determination of
probable cause. But this purpose is not served by the newfangled inspection
warrant. As the Court acknowledges, the inspector's "entitlement to inspect will
not depend on his demonstrating probable cause to believe that conditions in
violation of OSHA exist on the premises. . . . For purposes of an administrative
search such as this, probable cause justifying the issuance of a warrant may be
based . . . on a showing th t 'reasonable legislative or administrative standards
for conducting an . . . inspection are satisfied with respect to a particular
[establishment].' " Ante, at 320. To obtain a warrant, the inspector need only
show that "a specific business has been chosen for an OSHA search on the
basis of a general administrative plan for the enforcement of the Act derived
from neutral sources . . .." Ante, at 321. Thus, the only question for the
magistrate's consideration is whether the contemplated inspection deviates from
an inspection schedule drawn up by higher level agency officials.

39

Unlike the traditional warrant, the inspection warrant provides no protection

against the search itself for employers who the Government has no reason to

suspect are violating OSHA regulations. The Court plainly accepts the
proposition that random health and safety inspections are reasonable. It does
not question Congress' determination that the public interest in workplaces free
from health and safety hazards outweighs the employer's desire to conduct his
business only in the presence of permittees, except in those rare instances when
the Government has probable cause to suspect that the premises harbor a
violation of the law.
40

What purposes, then, are served by the administrative warrant procedure? The
inspection warrant purports to serve three functions: to inform the employer
that the inspection is authorized by the statute, to advise him of the lawful
limits of the inspection, and to assure him that the person demanding entry is an
authorized inspector. Camara v. Municipal Court, 387 U.S. 523, 532, 87 S.Ct.
1727, 1732, 18 L.Ed.2d 930. An examination of these functions in the OSHA
context reveals that the inspection warrant adds little to the protections already
afforded by the statute and pertinent regulations, and the slight additional
benefit it might provide is insufficient to identify a constitutional violation or to
justify overriding Congress' judgment that the power to conduct warrantless
inspections is essential.

41

The inspection warrant is supposed to assure the employer that the inspection is
in fact routine, and that the inspector has not improperly departed from the
program of representative inspections established by responsible officials. But
to the extent that harassment inspections would be reduced by the necessity of
obtaining a warrant, the Secretary's present enforcement scheme would have
precisely the same effect. The representative inspections are conducted " 'in
accordance with criteria based upon accident experience and the number of
employees exposed in particular industries.' " Ante, at 321 n.17. If, under the
present scheme, entry to covered premises is denied, the inspector can gain
entry only by informing his administrative superiors of the refusal and seeking
a court order requiring the employer to submit to the inspection. The inspector
who would like to conduct a nonroutine search is just as likely to be deterred by
the prospect of informing his superiors of his intention and of making false
representations to the court when he seeks compulsory process as by the
prospect of having to make bad-faith representations in an ex parte warrant
proceeding.

42

The other two asserted purposes of the administrative warrant are also
adequately achieved under the existing scheme. If the employer has doubts
about the official status of the inspector, he is given adequate opportunity to
reassure himself in this regard before permitting entry. The OSHA inspector's
sta utory right to enter the premises is conditioned upon the presentation of

appropriate credentials. 29 U.S.C. 657(a)(1). These credentials state the

inspector's name, identify him as an OSHA compliance officer, and contain his
photograph and signature. If the employer still has doubts, he may make a tollfree call to verify the inspector's authority. Usery v. Godfrey Brake & Supply
Service, Inc., 545 F.2d 52, 54 (CA 8 1976), or simply deny entry and await the
presentation of a court order.
43

The warrant is not needed to inform the employer of the lawful limits of an
OSHA inspection. The statute expressly provides that the inspector may enter
all areas in a covered business "where work is performed by an employee of an
employer," 29 U.S.C. 657(a)(1), "to inspect and investigate during regular
working hours and at other reasonable times, and within reasonable limits and
in a reasonable manner . . . all pertinent conditions, structures, machines,
apparatus, devices, equipment, and materials therein . . . ." 29 U.S.C. 657(a)
(2). See also 29 CFR 1903 (1977). While it is true that the inspection power
granted by Congress is broad, the warrant procedure required by the Court does
not purport to restrict this power but simply to ensure that the employer is
apprised of its scope. Since both the statute and the pertinent regulations
perform this informational function, a warrant is superfluous.

44

Requiring the inspection warrant, therefore, adds little in the way of protection
to that already provided under the existing enforcement scheme. In these
circumstances, the warrant is essentially a formality. In view of the obviously
enormous cost of enforcing a health and safety scheme of the dimensions of
OSHA, this Court should not, in the guise of construing the Fourth
Amendment, require formalities which merely place an additional strain on
already overtaxed federal resources.

45

Congress, like this Court, has an obligation to obey the mandate of the Fourth
Amendment. In the past the Court "has been particularly sensitive to the
Amendment's broad standard of 'reasonableness' where . . . authorizing statutes
permitted the challenged searches." Almeida-Sanchez v. United States, 413 U.S.
266, 290, 93 S.Ct. 2535, 2548, 37 L.Ed.2d 596 (WHITE, J., dissenting). In
United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d
1116, for example, respondents challenged the routine stopping of vehicles to
check for aliens at permanent checkpoints located away from the border. The
checkpoints were established pursuant to statutory authority and their location
and operation were governed by administrative criteria. The Court rejected
respondents' argument that the constitutional reasonableness of the location and
operation of the fixed checkpoints should be reviewed in aCamara warrant
proceeding. The Court observed that the reassuring purposes of the inspection
warrant were adequately served by the visible manifestations of authority

exhibited at the fixed checkpoints.

46

Moreover, although the location and method of operation of the fixed

checkpoints were deemed critical to the constitutional reasonableness of the
challenged stops the Court did not require Border Patrol officials to obtain a
warrant based on a showing that the checkpoints were located and operated in
accordance with administrative standards. Indeed, the Court observed that "
[t]he choice of checkpoint locations must be left largely to the discretion of
Border Patrol officials, to be exercised in accordance with statutes and
regulations that may be applicable . . . [and] [m]any incidents of checkpoint
operation also must be committed to the discretion of such officials." 428 U.S.,
at 559-560, n.13, 96 S.Ct., at 3083. The Court had no difficulty assuming that
those officials responsible for allocating limited enforcement resources would
be "unlikely to locate a checkpoint where it bears arbitrarily or oppressively on
motorists as a clas ." Id. at 559, 96 S.Ct. at 3083.

47

The Court's recognition of Congress' role in balancing the public interest

advanced by various regulatory statutes and the private interest in being free
from arbitrary governmental intrusion has not been limited to situations in
which, for example, Congress is exercising its special power to exclude aliens.
Until today, we have not rejected a congressional judgment concerning the
reasonableness of a category of regulatory inspections of commercial
premises.7 While businesses are unquestionably entitled to Fourth Amendment
protection, we have "recognized that a business by its special nature and
voluntary existence, may open itself to intrusions that would not be permissible
in a purely private context." G. M. Leasing Corp. v. United States, 429 U.S.
338, 353, 97 S.Ct. 619, 629, 50 L.Ed.2d 530. Thus, in Colonnade Catering
Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60, the Court
recognized the reasonableness of a statutory authorization to inspect the
premises of a caterer dealing in alcoholic beverages, noting that "Congress has
broad power to design such powers of inspection under the liquor laws as it
deems necessary to meet the evils at hand." Id., at 76, 90 S.Ct. at 777. And in
United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87, the Court
sustained the authority to conduct warrantless searches of firearm dealers under
the Gun Control Act of 1968 primarily on the basis of the reasonableness of the
congressional evaluation of the interests at stake.8

48

The Court, however, concludes that the deference accorded Congress in Biswell
and Colonnade should be limited to situations where the evils addressed by the
regulatory statute are peculiar to a specific industry and that industry is one
which has long been subject to Government regulation. The Court reasons that
only in those situations can it be said that a person who engages in business will

be aware of and consent to routine, regulatory inspections. I cannot agree that

the respect due the congressional judgment should be so narrowly confined.
49

In the first place, the longevity of a regulatory program does not, in my

judgment, have any bearing on the reasonableness of routine inspections
necessary to achieve adequate enforcement of that program. Congress'
conception of what constitute urgent federal interests need not remain static.
The recent vintage of public and congressional awareness of the dangers posed
by health and safety hazards in the workplace is not a basis for according less
respect to the considered judgment of Congress. Indeed, in Biswell, the Court
upheld an inspection program authorized by a regulatory statute enacted in
1968. The Court there noted that "[f]ederal regulation of the interstate traffic in
firearms is not as deeply rooted in history as is governmental control of the
liquor industry, but close scrutiny of this traffic is undeniably" an urgent federal
interest. 406 U.S., at 315, 92 S.Ct. at 1596. Thus, the critical fact is the
congressional determination that federal regulation would further significant
public interests, not the date that determination was made.

50

In the second place, I see no basis for the Court's conclusion that a
congressional determination that a category of regulatory inspections is
reasonable need only be respected when Congress is legislating on an industryby-industry basis. The pertinent inquiry is not whether the inspection program
is authorized by a regulatory statute directed at a single industry, but whether
Congress has limited the exercise of the inspection power to those commercial
premises where the evils at which the statute is directed are to be found. Thus,
in Biswell, if Congress had authorized inspections of all commercial premises
as a means of restricting the illegal traffic in firearms, the Court would have
found the inspection program unreasonable; the power to inspect was upheld
because it was tailored to the subject matter of Congress' proper exercise of
regulatory power. Similarly, OSHA is directed at health and safety hazards in
the workplace, and the inspection power granted the Secretary extends only to
those areas where such hazards are likely to be found.

51

Finally, the Court would distinguish the respect accorded Congress' judgment in
Colonnade and Biswell on the ground that businesses engaged in the liquor and
firearms industry " 'accept the burdens as well as the benefits of their trade . . .
.' " Ante, at 313. In the Court's view, such businesses consent to the restrictions
placed upon them, while it would be fiction to conclude that a businessman
subject to OSHA consented to routine safety inspections. In fact, however,
consent is fictional in both contexts. Here, as well as in Biswell, businesses are
required to be aware of and comply with regulations governing their business
activities. In both situations, the validity of the regulations depends not upon

the consent of those regulated, but on the existence of a federal statute

embodying a congressional determination that the public interest in the health
of the Nation's work force or the limitation of illegal firearms traffic outweighs
the businessman's interest in preventing a Government inspector from viewing
those areas of his premises which relate to the subject matter of the regulation.
52

The case before us involves an attempt to conduct a warrantless search of the

working area of an electrical and plumbing contractor. The statute authorizes
such an inspection during reasonable hours. The inspection is limited to those
areas over which Congress has exercised its proper legislative authority.9 The
area is also one to which employees have regular access without any suggestion
that the work performed or the equipment used has any special claim to
confidentiality.10 Congress has determined that industrial safety is an urgent
federal interest requiring regulation and supervision, and further, that
warrantless inspections are necessary to accomplish the safety goals of the
legislation. While one may question the wisdom of pervasive governmental
oversight of industrial life, I decline to question Congress' judgment that the
inspection power is a necessary enforcement device in achieving the goals of a
valid exercise of regulatory power.11

53

I respectfully dissent.

In order to carry out the purposes of this chapter, the Secretary, upon presenting
appropriate credentials to the owner, operator, or agent in charge, is authorized

"(1) to enter without delay and at reasonable times any factory, plant,
establishment, construction site, or other area, workplace or environment where
work is performed by an employee of an employer; and
"(2) to inspect and investigate during regular working hours and at other
reasonable times, and within reasonable limits and in a reasonable manner, any
such place of employment and all pertinent conditions, structures, machines,
apparatus, devices, equipment, and materials therein, and to question privately
any such employer, owner, operator, agent, or employee."
84 Stat. 1598, 29 U.S.C. 657(a).

This is required by the Act. See n. 1, supra.

A regulation of the Secretary, 29 CFR 1903.4 (1977), requires an inspector to

seek compulsory process if an employer refuses a requested search. See infra,

at 317, and n. 12.
4

No res judicata bar arose against Mr. Barlow from the December 30, 1975,
order authorizing a search, because the earlier decision reserved the
constitutional issue. See 424 F.Supp. 437.

H. Commager, Documents of American History 104 (8th ed. 1968).

See, e. g., Dickerson, Writs of Assistance as a Cause of the Revolution in The

Era of the American Revolution 40 (R. Morris ed. 1939).

The Stamp Act of 1765, the Townshend Revenue Act of 1767, and the tea tax
of 1773 are notable examples. See Commager, supra, n. 5, at 53, 63. For
commentary, see 1 S. Morison, H. Commager, & W. Leuchtenburg, The
Growth of the American Republic 143, 149, 159 (1969).

The Government has asked that Mr. Barlow be ordered to show cause why he
should not be held in contempt for refusing to honor the inspection order, and
its position is that the OSHA inspector is now entitled to enter at once, over
Mr. Barlow's objection.

Cf. Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct.
2114, 40 L.Ed.2d 607 (1974).

10

The automobile-search cases cited by the Secretary are even less helpful to his
position than the labor cases. The fact that automobiles occupy a special
category in Fourth Amendment case law is by now beyond doubt due, among
other factors, to the quick mobility of a car, the registration requirements of
both the car and the driver, and the more available opportunity for plain-view
observations of a car's contents. Cady v. Dombrowski, 413 U.S. 433, 441-442,
93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973); see also Chambers v. Maroney,
399 U.S. 42, 48-51, 90 S.Ct. 1975, 1979-1981, 26 L.Ed.2d 419 (1970). Even so,
probable cause has not been abandoned as a requirement for stopping and
searching an automobile.

11

We recognize that today's holding itself might have an impact on whether

owners choose to resist requested searches; we can only await the development
of evidence not present on this record to determine how serious an impediment
to effective enforcement this might be.

12

It is true, as the Secretary asserts, that 8(a) of the Act, 29 U.S.C. 657(a),
purports to authorize inspections without warrant; but it is also true that it does
not forbid the Secretary from proceeding to inspect only by warrant or other

process. The Secretary has broad authority to prescribe such rules and
regulations as he may deem necessary to carry out his responsibilities under this
chapter, "including rules and regulations dealing with the inspection of an
employer's establishment." 8(g)(2), 29 U.S.C. 657(g)(2). The regulations
with resp ct to inspections are contained in 29 CFR Part 1903 (1977). Section
1903.4, referred to in the text, provides as follows:
"Upon a refusal to permit a Compliance Safety and Health Officer, in the
exercise of his official duties, to enter without delay and at reasonable times
any place of employment or any place therein, to inspect, to review records, or
to question any employer, owner, operator, agent, or employee, in accordance
with 1903.3, or to permit a representative of employees to accompany the
Compliance Safety and Health Officer during the physical inspection of any
workplace in accordance with 1903.8, the Compliance Safety and Health
Officer shall terminate the inspection or confine the inspection to other areas,
conditions, structures, machines, apparatus, devices, equipment, materials,
records, or interviews concerning which no objection is raised. The Compliance
Safety and Health Officer shall endeavor to ascertain the reason for such
refusal, and he shall immediately report the refusal and the reason therefor to
the Area Director. The Area Director shall immediately consult with the
Assistant Regional Director and the Regional Solicitor, who shall promptly
take appropriate action, including compulsory process, if necessary."
When his representative was refused admission by Mr. Barlow, the Secretary
proceeded in federal court to enforce his right to enter and inspect, as conferred
by 29 U.S.C. 657.
13

A change in the language of the Compliance Operations Manual for OSHA

inspectors supports the inference that, whatever the Act's administrators might
have thought at the start, it was eventually concluded that enforcement
efficiency would not be jeopardized by permitting employers to refuse entry, at
least until the inspector obtained compulsory process. The 1972 Manual
included a section specifically directed to obtaining "warrants," and one
provision of that section dealt with ex parte warrants:
"In cases where a refusal of entry is to be expected from the past performance
of the employer, or where the employer has given some indication prior to the
commencement of the investigation of his intention to bar entry or limit or
interfere with the investigation, a warrant should be obtained before the
inspection is attempted. Cases of this nature should also be referred through the
Area Director to the appropriate Regional Solicitor and the Regional
Administrator alerted." Dept. of Labor, OSHA Compliance Operations Manual
V-7 (Jan. 1972).

The latest available manual, incorporating changes as of November 1977,

deletes this provision, leaving only the details for obtaining "compulsory
process" after an employer has refused entry. Dept. of Labor, OSHA Field
Operations Manual, Vol. V, pp. V-4 - V-5. In its present form, the Secretary's
regulation appears to permit establishment owners to insist on "process"; and
hence their refusal to permit entry would fall short of criminal conduct within
the meaning of 18 U.S.C. 111 and 1114 (1976 ed.), which make it a crime
forcibly to impede, intimidate, or interfere with federal officials, including
OSHA inspectors, while engaged in or on account of the performance of their
official duties.
14

The proceeding was instituted by filing an "Application for Affirmative Order

to Grant Entry and for an Order to show cause why such affirmative
order should not issue." The District Court issued the order to show cause, the
matter was argued, and an order then issued authorizing the inspection and
enjoining interference by Barlow's. The following is the order issued by the
District Court:
"IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the United
States of America, United States Department of Labor, Occupational Safety and
Health Administration, through its duly designated representative or
representatives, are entitled to entry upon the premises known as Barlow's Inc.,
225 West Pine, Pocatello, Idaho, and may go upon said business premises to
conduct an inspection and investigation as provided for in Section 8 of the Occ
pational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.), as part of an
inspection program designed to assure compliance with that Act; that the
inspection and investigation shall be conducted during regular working hours or
at other reasonable times, within reasonable limits and in a reasonable manner,
all as set forth in the regulations pertaining to such inspections promulgated by
the Secretary of Labor, at 29 C.F.R., Part 1903; that appropriate credentials as
representatives of the Occupational Safety and Health Administration, United
States Department of Labor, shall be presented to the Barlow's Inc.
representative upon said premises and the inspection and investigation shall be
commenced as soon as practicable after the issuance of this Order and shall be
completed within reasonable promptness; that the inspection and investigation
shall extend to the establishment or other area, workplace, or environment
where work is performed by employees of the employer, Barlow's Inc., and to
all pertinent conditions, structures, machines, apparatus, devices, equipment,
materials, and all other things therein (including but not limited to records, files,
papers, processes, controls, and facilities) bearing upon whether Barlow's Inc.
is furnishing to its employees employment and a place of employment that are
free from recognized hazards that are causing or are likely to cause death or

serious physical harm to its employees, and whether Barlow's Inc. is complying
with the Occupational Safety and Health Standards promulgated under the
Occupational Safety and Health Act and the rules, regulations, and orders
issued pursuant to that Act; that representatives of the Occupational Safety and
Health Administration may, at the option of Barlow's Inc., be accompanied by
one or more employees of Barlow's Inc., pursuant to Section 8(e) of that Act;
that Barlow's Inc., its agents, representatives,
officers, and employees are hereby enjoined and restrained from in anyway
whatsoever interfering with the inspection and investigation authorized by this
Order and, further, Barlow's Inc. is hereby ordered and directed to, within five
working days from the date of this Order, furnish a copy of this Order to its
officers and managers, and, in addition, to post a copy of this Order at its
employee's bulletin board located upon the business premises; and Barlow's Inc.
is hereby ordered and directed to comply in all respects with this order and
allow the inspection and investigation to take place without delay and
forthwith."
15

Insofar as the Secretary's statutory authority is concerned, a regulation

expressly providing that the Secretary could proceed ex parte to seek a warrant
or its equivalent would appear to be as much within the Secretary's power as
the regulation currently in force and calling for "compulsory process."

16

Section 8(f)(1), 29 U.S.C. 657(f)(1), provides that employees or their

representatives may give written notice to the Secretary of what they believe to
be violations of safety or health standards and may request an inspection. If the
Secretary then determines that "there are reasonable grounds to believe that
such violation or danger exists, he shall make a special inspection in accordance
with the provisions of this section as soon as practicable." The statute thus
purports to authorize a warrantless inspection in these circumstances.

17

The Secretary, Brief for Petitioner 9 n. 7, states that the Barlow inspection was
not based on an employee complaint but was a "general schedule" investigation.
"Such general inspections," he explains, "now called Regional Programmed
Inspections, are carried out in accordance with criteria based upon accident
experience and the number of employees exposed in particular industries. U. S.
Department of Labor, Occupational Safety and Health Administration, Field
Operations Manual, supra, 1 CCH Employment Safety and Health Guide
4327.2 (1976)."

18

The Federal Metal and Nonmetallic Mine Safety Act provides: "Whenever an
operator . . . refuses to permit the inspection or investigation of any mine which
is subject to this chapter . . . a civil action for preventive relief, including an

application for a permanent or temporary injunction, restraining order, or other

order, may be instituted by the
Secretary in the district court of the United States for the district . . . ." 30
U.S.C. 733(a). "The Secretary may institute a civil action for relief, including
a permanent or temporary injunction, restraining order, or any other appropriate
order in the district court . . . whenever such operator or his agent . . . refuses to
permit the inspection of the mine . . . . Each court shall have jurisdiction to
provide such relief as may be appropriate." 30 U.S.C. 818. Another example
is the Clean Air Act, which grants federal district courts jurisdiction "to require
compliance" with the Administrator of the Environmental Protection Agency's
attempt to inspect under 42 U.S.C. 7414 (1976 ed., Supp. I), when the
Administrator has commenced "a civil action" for injunctive relief or to recover
a penalty. 42 U.S.C. 7413(b)(4) (1976 ed., Supp. I).
19

Exemplary language is contained in the Animal Welfare Act of 1970 which

provides for inspections by the Secretary of Agriculture; federal district courts
are vested with jurisdiction "specifically to enforce, and to prevent and restrain
violations of this chapter, and shall have jurisdiction in all other kinds of cases
arising under this chapter." 7 U.S.C. 2146(c) (1976 ed.). Similar provisions
are included in other agricultural inspection Acts; see, e. g., 21 U.S.C. 674
(meat product inspection); 21 U.S.C. 1050 (egg product inspection). The
Internal Revenue Code, whose excise tax provisions requiring inspections of
businesses are cited by the Secretary, provides: "The district courts . . . shall
have such jurisdiction to make and issue in civil actions, writs and orders of
injunction . . . and such other orders and processes, and to render such . . .
decrees as may be necessary or appropriate for the enforcement of the internal
revenue laws." 26 U.S.C. 7402(a). For gasoline inspections, federal district
courts are granted jurisdiction to restrain violations and enforce standards (one
of which, 49 U.S.C. 1677, requires gas transporters to permit entry or
inspection). The owner is to be afforded the opportunity for notice and response
in most cases, but "failure to give such notice and afford such opportunity shall
not preclude the granting of appropriate relief [by the district court]." 49 U.S.C.
1679(a).

20

The application for the inspection order filed by the Secretary in this case
represented that "the desired inspection and investigation are contemplated as a
part of an inspection program designed to assure compliance with the Act and
are authorized by Section 8(a) of the Act." The program was not described,
however, or any facts presented that would indicate why an inspection of
Barlow's establishment was within the program. The order that issued
concluded generally that the inspection authorized was "part of an inspection
program designed to assure compliance with the Act."

21

Section 8(a) of the Act, as set forth in 29 U.S.C. 657(a), provides that "in
order to carry out the purposes of this chapter" the Secretary may enter any
establishment, area, work place or environment "where work is performed by
an employee of an employer" and "inspect and investigate" any such place of
employment and all "pertinent conditions, structures, machines, apparatus,
devices, equipment, and materials therein, and . . . question privately any such
employer, owner, operator, agent, or employee." Inspections are to be carried
out "during regular working hours and at other reasonable times, and within
reasonable limits and in a reasonable manner." The Secretary's regulations echo
the statutory language in these respects. 29 CFR 1903.3 (1977). They also
provide that inspectors are to explain the nature and purpose of the inspection
and to "indicate generally the scope of the inspection." 29 CFR 1903.7(a)
(1977). Environmental samples and photographs are authorized, 29 CFR
1903.7(b) (1977), and inspections are to be performed so as "to preclude
unreasonable disruption of the operations of the employer's establishment." 29
CFR 1903.7(d) (1977). The order that issued in this case reflected much of
the foregoing statutory and regulatory language.

22

Delineating the scope of a search with some care is particularly important

where documents are involved. Section 8(c) of the Act, 29 U.S.C. 657(c),
provides that an employer must "make, keep and preserve, and make available
to the Secretary [of Labor] or to the Secretary of Health, Education and
Welfare" such records regarding his activities relating to OSHA as the
Secretary of Labor may prescribe by regulation as necessary or appropriate for
enforcement of the statute or for developing information regarding the causes
and prevention of occupational accidents and illnesses. Regulations requiring
employers to maintain records of and to make periodic reports on "work-related
deaths, injuries and illnesses" are also contemplated, as are rules requiring
accurate records of employee exposures to potential toxic materials and harmful
physical agents.
In describing the scope of the warrantless inspection authorized by the statute,
8(a) does not expressly include any records among those items or things that
may be examined, and 8(c) merely provides that the employer is to "make
available" his pertinent records and to make periodic reports.
The Secretary's regulation, 29 CFR 1903.3 (1977), however, expressly
includes among the inspector's powers the authority "to review records required
by the Act and regulations published in this chapter, and other records which
are directly related to the purpose of the inspection." Further, 1903.7 requires
inspectors to indicate generally "the records specified in 1903.3 which they
wish to review" but "such designations of records shall not preclude access to
additional records specified in 1903.3." It is the Secretary's position, which

we reject, that an inspection of documents of this scope may be effected without

a warrant.
The order that issued in this case included among the objects and things to be
inspected "all other things therein (including but not limited to records, files,
papers, processes, controls and facilities) bearing upon whether Barlow's, Inc.
is furnishing to its employees employment and a place of employment that are
free from recognized hazards that are causing or are likely to cause death or
serious physical harm to its employees, and whether Barlow's, Inc. is complying
with . . ." the OSHA regulations.
23

The injunction entered by the District Court, however, should not be

understood to forbid the Secretary from exercising the inspection authority
conferred by 8 pursuant to regulations and judicial process that satisfy the
Fourth Amendment. The District Court did not address the issue whether the
order for inspection that was issued in this case was the functional equivalent
of a warrant, and the Secretary has limited his submission in this case to the
constitutionality of a warrantless search of the Barlow establishment authorized
by 8(a). He has expressly declined to rely on 29 CFR 1903.4 (1977) and
upon the order obtained in this case. Tr. of Oral Arg. 19. Of course, if the
process obtained here, or obtained in other cases under revised regulations,
would satisfy the Fourth Amendment, there would be no occasion for enjoining
the inspections authorized by 8(a).

"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated . . . ."

"[A]nd no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized."

J. Landynski, Search and Seizure and the Supreme Court 19 (1966).

T. Taylor, Two Studies in Constitutional Interpretation 41 (1969).

See v. City of Seattle, 387 U.S. 541, 547, 87 S.Ct. 1737, 1741, 18 L.Ed.2d 943
(Clark, J., dissenting).

When it passed OSHA, Congress was cognizant of the fact that in light of the
enormity of the enforcement task "the number of inspections which it would be
desirable to have made will undoubtedly for an unforeseeable period, exceed
the capacity of the inspection force . . . ." Senate Committee on Labor and
Public Welfare, Legislative History of the Occupational Safety and Health Act
of 1970, 92d Cong., 1st Sess., 152 (Comm.Print 1971).

The Court's rejection of a legislative judgment regarding the reasonableness of

the OSHA inspection program is especially puzzling in light of recent decisions
finding law enforcement practices constitutionally reasonable, even though
those practices involved significantly more individual discretion than the
OSHA program. See, e. g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889; Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612;
Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706; South
Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000.

The Court held:

"In the context of a regulatory inspection system of business premises that is
carefully limited in time, place, and scope, the legality of the search depends . .
. on the authority of a valid statute.
*****
"We have little difficulty in concluding that where, as here, regulatory
inspections further urgent federal interest, and the possibilities of abuse and the
threat to privacy are not of impressive dimensions, the inspection may proceed
without a warrant where specifically authorized by statute." 406 U.S., at 315,
317, 92 S.Ct., at 1596.

What the Court actually decided in Camara v. Municipal Court, 387 U.S. 523,
87 S.Ct. 1727, 18 L.Ed.2d 930, and See v. City of Seattle, 387 U.S. 541, 87
S.Ct. 1737, 18 L.Ed.2d 943, does not require the result it reaches today.
Camara involved a residence, rather than a business establishment; although
the Fourth Amendment extends its protection to commercial buildings, the
central importance of protecting residential privacy is manifest. The building
involved in See was, of course, a commercial establishment, but a holding that a
locked warehouse may not be entered pursuant to a general authorization to
"enter all buildings and premises, except the interior of dwellings, as often as
may be necessary," 387 U.S., at 541, 87 S.Ct. at 1738, need not be extended to
cover more carefully delineated grants of authority. My view that the See
holding should be narrowly confined is influenced by my favorable opinion of
the dissent written by Mr. Justice Clark and joined by Justices Harlan and
Stewart. As Colonnade and Biswell demonstrate, however, the doctrine of stare
decisis does not compel the Court to extend those cases to govern today's
holding.

10

The Act and pertinent regulation provide protection for any trade secrets of the
employer. 29 U.S.C. 664-665; 29 CFR 1903.9 (1977).

11

The decision today renders presumptively invalid numerous inspection

provisions in federal regulatory statutes. E. g., 30 U.S.C. 813 (Federal Coal

Mine Health and Safety Act of 1969); 30 U.S.C. 723, 724 (Federal Metal
and Nonmetallic Mine Safety Act); 21 U.S.C. 603 (inspection of meat and
food products). That some of these provisions apply only to a single industry, as
noted above, does not alter this fact. And the fact that some "envision resort to
federal-court enforcement when entry is refused" is also irrelevant since the
OSHA inspection program invalidated here requires compulsory process when
a compliance inspector has been denied entry. Ante, at 321.